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Shalash v. Gray

United States District Court, S.D. Ohio, Western Division, Cincinnati

June 17, 2019

AHMAD SHALASH, Petitioner,
v.
DAVID GRAY, Warden, Belmont Correctional Institution, Respondent.

          Timothy S. Black, District Judge

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz, United States Magistrate Judge

         This habeas corpus case, brought by Petitioner Ahmad Shalash with the assistance of counsel, is before the Court on Petitioner's Objections (ECF No. 21) to the Magistrate Judge's Report and Recommendations which recommended dismissal (the “Report, ” ECF No. 18). Judge Black has recommitted the case to the Magistrate Judge for reconsideration in light of the Objections (Recommittal Order, ECF No. 22).

         The Petition pleads four grounds for relief and Petitioner objects to the Report's conclusions as to each one. They are considered here seriatim.

         Ground One: Sufficiency and Weight of the Evidence

         In his First Ground for Relief, Shalash asserts his conviction is not supported by sufficient evidence and is against the manifest weight of the evidence. The Report recommended dismissing the manifest weight claim as not cognizable in habeas corpus (ECF No. 18, PageID 1200). Petitioner does not object to that conclusion.

         The Report concluded the sufficiency of the evidence claim was procedurally defaulted because, although it was argued unsuccessfully in the Ohio First District Court of Appeals, it was not fairly presented thereafter to the Supreme Court of Ohio (ECF No. 18, PageID 1201). In his Reply, Petitioner conceded he did not present insufficiency of the evidence as a proposition of law on his Supreme Court appeal, but noted his comment on how little evidence there was in his general argument for discretionary review (ECF No. 15, PageID 1171). The question, then, is whether a general argument of the sort Shalash made in his Memorandum in Support of Jurisdiction is sufficient to fairly present an issue, particularly when an appellant is represented by counsel.[1]

         The Report concludes the sufficiency issues was not fairly presented. In the Memorandum in Support of Jurisdiction, Shalash's counsel never made the explicit claim the evidence was insufficient, never asserted the First District was in error for rejecting this assignment, and never cited any of the relevant Supreme Court precedent, Jackson v. Virginia, 443 U.S. 307 (1979), and its progeny.

         To show the general argument was enough, Petitioner relied on Peterson v. Miller, No. 1:16-cv-509, 2017 U.S. Dist. LEXIS 215391 (N.D. Ohio Dec. 7, 2017). The Report distinguishes Peterson in that the Northern District was construing a pro se pleading which is entitled to liberal construction under Supreme Court precedent (Report, ECF No. 18, PageID 1202, citing Estelle v. Gamble, 429 U.S. 91, 106 (1976). Even in Peterson the court refused to find a liberally construed proposition of law raised a federal constitutional question.

         The Objections disagree with the Report's reading of Peterson (ECF No. 21, PageID 1226). Having re-examined Peterson, the Magistrate Judge agrees it can be read as finding Peterson preserved a sufficiency of the evidence claim in the Ohio Supreme Court by the words he used, pro se, in the relevant propositions of law. Magistrate Judge Greenberg wrote:

Aside from a few references to "Fair Trial," "Due Process," and "Equal Protection," (Doc. No. 13-1, Exh. 17 at 242), Peterson did not couch the legal arguments he made in his jurisdictional memorandum to the Ohio Supreme Court in constitutional terms. Nor did he cite to any provision of the Constitution or any federal or state-court case applying federal constitutional law to support them. On the other hand, again liberally construing his state-court pleading, Peterson did present factual arguments that would advance a federal sufficiency-of -the-evidence claim, such as alleging a lack of physical evidence linking him to the crimes. The Court finds, therefore, that Peterson fairly presented this claim to Ohio courts, and it is preserved for federal habeas review.

2017 U.S. Dist. LEXIS 215391 at *46. Shalash's counsel says Peterson is not limited to pro se litigants. But it is only pro se litigants who are entitled to the liberal construction the Peterson court said it was giving to the pro se Memorandum in Support of Jurisdiction. Pleadings prepared by licensed attorneys are not entitled to that “liberal construction.”

         In addition, the words the Peterson court was construing are different from the words involved here. In Peterson the word “insufficient” was used in the second proposition of law and the words “without [any] facts of [sic] law” were used in the first proposition in the Ohio Supreme Court. Here there are no words adverting to the sufficiency of the evidence in any of the propositions of law, prepared by counsel, that were filed in the Supreme Court of Ohio.

         Putting these distinctions aside, the Magistrate Judge also notes that the Peterson decision is not controlling authority, but rather the decision of a sister court, considered only for its persuasiveness.[2]

         Shalash argues that even if he has procedurally defaulted on his sufficiency of the evidence claim, his default is excused by his actual innocence. While recognizing that new evidence of actual innocence can excuse a procedural default under Schlup v. Delo, 513 U.S. 298 (1995), the Report noted that the only new evidence of actual innocence was the affidavits of his two co-defendants, one of whom is the mother of his children, recanting their trial testimony. Recantation does not come within the types of new evidence accepted by the Sixth Circuit. See Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005), cited in the Report at PageID 1203.

         The Objections criticize the Report for “summarily dismiss[ing] the recanting affidavits without citing any law which supports the Magistrate's contention that the affidavits are unreliable.” (ECF No. 21, PageID 1227). But as just noted, the Report cites Souter which quotes Schlup on the types of new evidence which are reliable. Id.

         Courts in general are strongly skeptical of affidavits recanting sworn trial testimony. “Recanting affidavits and witnesses are viewed with extreme suspicion.” United States v. Willis, 257 F.3d 636, 645 (6th Cir. 2001); United States v. Chambers, 944 F.2d 1252, 1264 (6th Cir. 1991); see also United States v. Lewis, 338 F.2d 137, 139 (6th Cir. 1964). Even if accepted, recantation of trial testimony is generally not sufficient to grant habeas relief absent constitutional error. Welsh v. Lafler, 444 Fed. App'x 844, 850 (6th Cir. 2011). See general discussion to the same effect in Davis v. Bradshaw, 900 F.3d 315 (6th Cir. 2018).

         Even if the procedural default of the sufficiency claim were put to one side, Shalash would not be entitled to relief on the merits of that claim. In order for a conviction to be constitutionally sound, every element of the crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. 361, 364 (1970).

[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt . . . . This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence and to draw reasonable inferences from basic facts to ultimate facts.

Jackson, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 * 4-5 (S.D. Ohio Oct. 12, 2007). This rule was recognized in Ohio law at State v. Jenks, 61 Ohio St.3d 259 (1991). Of course, it is state law which determines the elements of offenses; but once the state has adopted the elements, it must then prove each of them beyond a reasonable doubt. In re Winship, 397 U.S. at 361.

         In cases such as Petitioner's challenging the sufficiency of the evidence and filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No. 104-132, 110 Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:

In an appeal from a denial of habeas relief, in which a petitioner challenges the constitutional sufficiency of the evidence used to convict him, we are thus bound by two layers of deference to groups who might view facts differently than we would. First, as in all sufficiency-of-the-evidence challenges, we must determine whether, viewing the trial testimony and exhibits in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In doing so, we do not reweigh the evidence, re-evaluate the credibility of witnesses, or substitute our judgment for that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993). Thus, even though we might have not voted to convict a defendant had we participated in jury deliberations, we must uphold the jury verdict if any rational trier of fact could have found the defendant guilty after resolving all disputes in favor of the prosecution. Second, even were we to conclude that a rational trier of fact could not have found a petitioner guilty beyond a reasonable doubt, on habeas review, we must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable. See 28 U.S.C. § 2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus case, deference should be given to the trier-of-fact's verdict under Jackson and then to the appellate court's consideration of that verdict, as commanded by the AEDPA. Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008); accord Davis v. Lafler,658 F.3d 525, 531 (6th Cir. 2011)(en banc); Parkerv. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based upon ...


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